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Civil asset forfeiture: How does it happen? Are there limits?

Criminal forfeiture allows law enforcement agencies to seize cash, cars and artwork linked to a crime. It requires a criminal conviction; however, it's cousin civil asset forfeiture goes directly after property - often vehicles (even if the owner was not the driver) - and requires no conviction.

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Consider a Texas Tribune story related to the case of: State of Texas vs. One 2003 Chevrolet Silverado. The owner loaned her truck to her son to drive his pregnant girlfriend to the hospital. Police stopped him while driving the Silverado, found drugs and charged him with a controlled substance offense. Her vehicle was seized.

Burden of proof to get property returned

It took the woman seven weeks to get the Harris County District Attorney's Office to release the vehicle and agree to resolve the suit. To cost to get her vehicle back: $1,600 plus towing and storage fees.

Civil asset forfeiture cases are separate from the underlying criminal case. The property itself becomes the defendant and the owner has the burden to prove the property "innocent." Fail to challenge the seizure and your property automatically goes to the state.

Some of the property is worth less than the attorney fees to fight a case, so these become forest-for-the-trees cases. Each may be small, but added together the funds (total asset forfeiture in Texas was $50 million in 2017) offset declining law enforcement budgets and buy fancy treadmills for staff gyms.

While the topic has come up in several recent legislative sessions, it is unlikely to change with powerful lobbying interests backing the status quo.

Limits recently addressed by the U.S. Supreme Court

The issue is not isolated to Texas. A case that started with the civil forfeiture of a $42,000 Land Rover in Indiana made its way to the U.S. Supreme Court. The criminal conviction for selling heroin resulted in a sentence of one-year house arrest, five years or probation and fines and fees of $1,200. The maximum penalty was $10,000. The seizure of the Land Rover amounted to four times the maximum penalty available for the criminal conviction.

The issue was whether the forfeiture violated the Eighth Amendment which prohibits "excessive fines." It had also been unclear whether the clause applied to states.

Justice Ruth Bader Ginsburg writing for the majority held that the clause does apply to the states. In her ruling, she cited examples from history where absorbent fines had been used to stop unfavorable political speech and maintain prewar racial hierarchy.

The factual question of whether the seizure of the Land Rover was excessive was left for the state court to resolve.

All this goes to the point that if you or a loved one has been arrested and a vehicle or other property was seized, you need an experienced criminal defense attorney. Because of the wide-ranging collateral consequences, you need sound legal counsel and a tough trial attorney in your corner to fight back.

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